[CCWG-ACCT] [WP1] Stress Test 18: bylaw amendment suggestion

Mon Nov 9 19:11:42 UTC 2015

With respect to the suggestion for a Bylaws amendment that initiated this thread, it should IMHO be rejected.

The current language of Article XI.2 of the Bylaws relating to GAC advice states:
j. The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.
k. If no such solution can be found, the ICANN Board will state in its final decision the reasons why the Governmental Advisory Committee advice was not followed, and such statement will be without prejudice to the rights or obligations of Governmental Advisory Committee members with regard to public policy issues falling within their responsibilities.(Emphasis added)

My understanding is that the Board’s informal practice is to require a 2/3 majority for rejection of GAC consensus advice. But when it recently proposed to formalize that practice via a Bylaws amendment there was substantial negative community feedback, the Board reversed course, and there has been no indication of a change in community views since then.

The proposed amendment has two operative clauses:

1.       “In this context, each Advisory Committee has the right to determine its particular definition of consensus.” This merely makes explicit what is already implicit in the text of proposed ST 18, which is that it does not define the meaning of GAC “consensus”. In either case the GAC is free to alter its definition of consensus in the future from its present practice of finding consensus only when there is non-objection. In my opinion, it is almost inevitable that a divisive issue will arise in the future that serves as a predicate for such definitional change (e.g., consensus exists when 2/3 of GAC members support proposed advice) and that will place the ICANN Board in the unenviable position of having to choose between blocs of governments with opposing viewpoints, as well as irretrievably alter the GAC’s internal politics and its role within ICANN.

2.       “Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board.” This proposal is even more objectionable, as it would transform the status  of the GAC “consensus” output from advice that must be given reasonable consideration by the Board, and obligates the Board to seek to negotiate a “mutually acceptable solution”, to a presumptive dictate that must be followed unless rejected by 2/3 or more of the Board. It would also transform the Board-GAC relationship into one that is potentially far more confrontational than the current collaborative arrangement.

The NTIA has made clear that ST 18 is an essential element of the CCWG proposal, and US Congressional staff who spoke at ICANN 54 in Dublin delivered the same bipartisan message.

As discussed above, the proposed text of ST 18 does not block the GAC from altering its internal definition of consensus --  the revised text just circulated by Steve states in relevant part: “The GAC currently uses the following consensus rule for its decisions: “consensus is understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection.” The proposed bylaws change above recognizes that GAC may, at its discretion, amend its Operating Principle 47 regarding “Provision of Advice to the ICANN Board.” “

The role of the GAC in relation to post-transition ICANN remains uncertain in other ways. It presently appears that it will be left to the GAC’s own discretion as to whether it will exercise a vote on the use of community powers, and the GAC could readily trade its decision to vote or not, and whether to vote for or object, with the Board or other internal ICANN constituencies. Indeed, it could leverage that discretion to influence Board disposition of its advice.

Overall, there is some considerable irony that the third iteration Designator model has the community foregoing many of the statutory powers  accorded under California public benefit corporation law, while simultaneously according the GAC substantially more potential  influence on ICANN policy matters than it enjoys at present.

Regards,
Philip

Philip S. Corwin, Founding Principal
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From: wp1-bounces at icann.org [mailto:wp1-bounces at icann.org] On Behalf Of Jordan Carter
Sent: Monday, November 09, 2015 1:10 PM
To: Steve DelBianco; wp1 at icann.org
Cc: accountability-cross-community at icann.org
Subject: Re: [WP1] [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

... or, should it stay in the ST-WP, where all this has been done so far?

[my preference would be in ST-WP]

J

On 10 November 2015 at 07:09, Jordan Carter <jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>> wrote:
All - do we need a WP1 call to discuss this? We could squeeze one in and have it ready for debate at CCWG on Friday?

Jordan

On 10 November 2015 at 03:48, Steve DelBianco <sdelbianco at netchoice.org<mailto:sdelbianco at netchoice.org>> wrote:
Thank-you Pedro for picking-up this discussion after Dublin.

Speaking only for myself, I am optimistic that CCWG might agree to apply the same condition for advice from all Advisory Committees.  What about a general Advisory Committee amendment along these lines, without singling-out the GAC?

For any Advisory Committee where the Board is required to seek a mutually acceptable solution if the Board does not follow that Committee’s advice, the Board should not be required to arbitrate among divergent views within that Committee.  Therefore, the Board shall have no obligation to seek a mutually acceptable solution for Advisory Committee advice that was not supported by consensus among Committee members.

Second, regarding your additional request to require more than 2/3 majority vote for the board to reject GAC advice.   That has not been discussed in the CCWG, and would be regarded as a bid to enhance the weight of GAC’s advice.

I believe that a new +2/3 rule would have to be balanced — by a requirement that any such GAC advice was adopted in the absence of any formal objection.  As you know, this is the GAC’s present rule for decision-making, so this does not impose any change on the GAC.

Finally, we’re interested to know the GAC’s reaction to the rationale we provided for Stress Test 18 in Dublin.   I’ve attached revised text for ST 18 that reflects the updated rationale, as approved by Stress Test working party (before Dublin)  This text makes no mention of government ‘capture’ and removes the offending language (with my apologies, once again).

Am looking forward to seeing you at IGF and welcome additional exchanges of ideas there.

Best regards,
Steve

From: <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>> on behalf of Pedro Ivo Ferraz da Silva <pedro.ivo at itamaraty.gov.br<mailto:pedro.ivo at itamaraty.gov.br>>
Date: Monday, November 9, 2015 at 11:28 AM
To: "accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>" <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: [CCWG-ACCT] Stress Test 18: bylaw amendment suggestion

Dear CCWG colleagues,

As you are aware, in Dublin the GAC has provided a consensus input with regards to the bylaw amendments derived from ST18. The GAC input was the following:

"The discussions on Stress Test 18 have helped the GAC to have a better understanding of the different views on the issue. In assessing the different rationales presented so far related to Stress Test 18, the GAC considered:

·  The need that each and every Advisory Committee ensures that the advice provided is clear and reflects the consensus view of the Committee;

·  The need that each and every Advisory Committee should preserve its own autonomy in its definition of consensus;

·  The value the Board attributes to receiving consensus advice;

·  The recommendation of the BGRI WG, as reiterated by the ATRT2, to set the threshold

for the ICANN Board to reject GAC advice to a 2/3 majority voting, consistent with the threshold established for rejection of ccNSO and GNSO PDP recommendations.

In view of the above, having considered concerns expressed by various parties, the GAC agreed to further work on the issue of Stress Test 18, and to submit any further input to the CCWG taking into account the timelines of the CCWG. GAC Members will continue to work within the CCWG to finalise the proposal for enhancing ICANN accountability."

With the aim of addressing the input given by the GAC in its ICANN 54 communiqué and the original concerns expressed by the ST18 proponents, I present for your consideration the following alternative amendments (underlined) in ICANN bylaws.

ARTICLE XI: ADVISORY COMMITTEES
Section 1. GENERAL
“The Board may create one or more Advisory Committees in addition to those set forth in this Article. Advisory Committee membership may consist of Directors only, Directors and non-directors, or non-directors only, and may also include non-voting or alternate members. Advisory Committees shall have no legal authority to act for ICANN, but shall report their findings and recommendations to the Board.
Where the ICANN Board is obliged to pay due deference to advice from Advisory Committees and where that advice, if not followed, requires finding mutually agreed solutions for implementation of that advice, the Advisory Committee will make every effort to ensure that the advice provided is clear and reflects the consensus view of the committee. In this context, each Advisory Committee has the right to determine its particular definition of consensus.”

ARTICLE XI: ADVISORY COMMITTEES
Section 2. SPECIFIC ADVISORY COMMITTEES
Item 1.j
“The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any GAC Advice approved by a GAC consensus may only be rejected by a vote of more than two-thirds (2/3) of the Board. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.”

Kind regards,

Pedro Ivo Ferraz da Silva
Divisão da Sociedade da Informação
Ministério das Relações Exteriores
T: +55 61 2030-6609<tel:%2B55%2061%202030-6609>

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InternetNZ

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